Lexis®Library update: The court’s ruling relates to a reference made by the Lord Advocate, Dorothy Bain KC, on the proposed Scottish Independence Referendum Bill, which provides that the question to be asked in a referendum would be ‘Should Scotland be an independent country?’. The reference was made under paragraph 34 of Schedule 6 to the Scotland Act 1998 (SA 1998), which permits the Lord Advocate to ‘refer to the Supreme Court any devolution issue which is not the subject of proceedings’. The key issue in the reference was whether the provision relates to reserved matters.
Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998, [2022] UKSC 31
Background to the appeal
The Scottish Government has drafted a Scottish Independence Referendum Bill which makes provision for a referendum on the question, ‘Should Scotland be an independent country?’. Under the SA 1998, the power of the Scottish Parliament to make legislation (or its ‘legislative competence’) is limited. A provision of a Bill will be outside the legislative competence of the Scottish Parliament and therefore not law if it relates to the matters which have been reserved to the United Kingdom (UK) Parliament in Westminster (sections 29(1) and (2)(b)). These reserved matters include ‘the Union of the Kingdoms of Scotland and England’ and ‘the Parliament of the United Kingdom’ (Schedule 5, paragraphs 1(b) and (c)).
In this reference, the Lord Advocate (the senior law officer of the Scottish Government) asked the Supreme Court whether the provision of the proposed Bill which provides for a referendum on Scottish independence would be outside the legislative competence of the Scottish Parliament because it relates to either or both of the reserved matters of the Union or the UK Parliament. This is a legal question about the Scottish Parliament’s power to make legislation under the SA 1998. The Court was not being and could not be asked to give a view on the distinct political question of whether Scotland should become independent from the rest of the UK.
The powers of the Scottish Parliament were not in issue during the 2014 referendum on Scottish independence. This is because, in 2013, an Order in Council under section 30(2) of the SA 1998 modified the definition of reserved matters to enable the Scottish Parliament to pass the 2014 referendum legislation. The UK government is currently unwilling to agree to the making of another Order in Council to facilitate another referendum on Scottish independence.
The Lord Advocate’s reference was made under paragraph 34 of Schedule 6 to the SA 1998. The Advocate General for Scotland (the Scottish law officer of the UK government), raised two preliminary issues, namely, whether the Court can and should answer the reference.
There were consequently three issues which the court had to consider:
• is the question referred by the Lord Advocate a ‘devolution issue’? If not, it cannot be the subject of a reference under paragraph 34 of Schedule 6, which would mean that the Court does not have jurisdiction to decide it
• even if it is, should the Court exercise its discretion to decline to accept the reference?
• if the Court accepts the reference, how should it answer the question the Lord Advocate has referred to it?
Judgment
In a unanimous judgment, the Supreme Court answers the questions before it as follows:
• first, the question referred by the Lord Advocate is a devolution issue, which means that that the Court has jurisdiction to decide it
• secondly, the Court should accept the reference
• thirdly, the provision of the proposed Bill which makes provision for a referendum on the question, 'Should Scotland be an independent country?', does relate to matters which have been reserved to the Parliament of the UK under the SA 1998. In particular, it relates to the reserved matters of the Union of the Kingdoms of Scotland and England and the Parliament of the UK
Accordingly, in the absence of any modification of the definition of reserved matters (by an Order in Council or otherwise), the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence.
Reasons for the Judgment
Issue 1: Is the question referred by the Lord Advocate a devolution issue?
Only a ‘devolution issue’ can be referred to the Court under paragraph 34 of Schedule 6 to the SA 1998. The term ‘devolution issue’ is defined by paragraph 1 of Schedule 6. Under paragraph 1(f), it includes ‘any other question arising by virtue of this Act about reserved matters’. The Court concludes that the question referred by the Lord Advocate falls within this description and is therefore a devolution issue which the Court has jurisdiction to decide.
In reaching this conclusion, the Court holds, first, that the question referred is one ‘arising by virtue of’ the SA 1998 because it is a question which arises under section 31(1) for the person wishing to introduce the Bill into the Scottish Parliament. That person is required, on or before the Bill’s introduction, to give a statement confirming that, in their view, the provisions of the Bill would be within the legislative competence of the Scottish Parliament. Secondly, the existence of the separate scheme for the scrutiny of Bills for legislative competence by the Court in section 33 of the SA 1998 does not prevent a reference from being made under paragraph 34 of Schedule 6 in relation to a proposed Bill, before it is introduced. Thirdly, the terms of paragraph 1(f) of Schedule 6 are very wide. They are intended to sweep up any questions arising under the SA 1998 about reserved matters which are not covered elsewhere. Fourthly, it is consistent with the rule of law and with the intention of the Scotland Act that the Lord Advocate should be able to obtain an authoritative judicial decision on the legislative competence of the Scottish Parliament in advance of the introduction of a Bill.
Issue 2: Should the Court decline to accept the Lord Advocate’s reference?
The Court concludes that it should accept the reference. The reference has been made in order to obtain an authoritative ruling on a question of law which has already arisen as a matter of public importance. The Court’s answer will determine whether the proposed Bill is introduced into the Scottish Parliament. The reference is not therefore hypothetical, academic or premature.
Issue 3: Does the proposed Bill relate to reserved matters?
The question whether the provision of the proposed Bill which provides for a referendum on Scottish independence would relate to matters which have been reserved to the UK Parliament under the SA 1998 (section 29(2)(b)) is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances (section 29(3)).
A provision will relate to a reserved matter if it has something more than a loose or consequential connection with it. The purpose and effect of the provision may be derived from a consideration of both the purpose of those introducing the legislation and the objective effect of its terms. Its effect is not restricted to its legal consequences.
Applying this test, the reserved matters which are relevant here are ‘the Union of the Kingdoms of Scotland and England’ and ‘the Parliament of the United Kingdom’ (Schedule 5, paragraphs 1(b) and (c)). The latter reservation includes the sovereignty of the UK Parliament. The purpose of the proposed Bill is to hold a lawful referendum on the question of whether Scotland should become an independent country, that is, on ending the Union and the sovereignty of the UK Parliament over Scotland. The Bill’s effect will not be confined to the holding of the referendum. Even if the referendum has no immediate legal consequences, it would be a political event with important political consequences. It is therefore clear that the proposed Bill has more than a loose or consequential connection with the reserved matters of the Union of Scotland and England and the sovereignty of UK Parliament. Accordingly, the proposed Bill relates to reserved matters and is outside the legislative competence of the Scottish Parliament.
The Scottish National Party (SNP) (intervening) made further written submissions founded on the right to self–determination in international law and the principle of legality in domestic law. The Court rejects these submissions, holding that the right to self–determination is not in issue here and does not require a narrow reading of ‘relates to’ in section 29(2)(b) so as to limit the scope of the matters reserved to the UK Parliament under the SA 1998. Similarly, the allocation of powers between the UK and Scotland under the SA 1998 does not infringe the principle of legality.
Statements in response
Among responses to the ruling, there was broad consensus that the unanimous judgment of the Supreme Court provided clarity on the issue and should be respected. However, unsurprisingly, there were differences over how to move forward. Those in favour of Scottish independence have questioned what the ruling means for Scottish devolution, Scottish democracy and the notion of the UK as a voluntary partnership of nations. Those opposed are calling for the Scottish and UK governments to turn their attention away from the question of independence and to focus on shared challenges and priorities including the economy, cost of living crisis and the NHS.
The First Minister of Scotland and Leader of the SNP, Nicola Sturgeon, gave a statement on Scotland’s future. While accepting the judgment, she raised concern that the Scottish devolution settlement was inconsistent with Scottish democracy, stating that: 'the notion of the UK as a voluntary partnership of nations is no longer, if it ever was, a reality. And that exposes a situation that is quite simply unsustainable'. With a referendum effectively ruled out at this point in time, Sturgeon highlighted the need to find alternative democratic routes allowing the Scottish people to express their view on the issue. Turning to the next national election scheduled for Scotland, the UK General Election, she said 'it is the first and the most obvious opportunity to seek…a de facto referendum'. Sturgeon also said the SNP will launch a 'major campaign in defence of Scottish democracy'.
Prime Minister Rishi Sunak also welcomed the court’s ‘clear and definitive ruling’ while addressing questions on the subject in Prime Minister’s Questions (PMQs) in the House of Commons. PMQs was followed by an urgent question from Leader of the SNP in the House of Commons, Ian Blackford, requesting a statement on the ruling. The government’s response was given by Secretary of State for Scotland, Alister Jack. The Secretary of State welcomed the ruling, which he said confirmed the UK government’s long-held position on the issue. Going forward, he said it was important to focus on the issues that matter most to the people in Scotland, rather than constitutional divisions. He rejected claims that the SNP has a mandate for a referendum based on the result of the Scottish Parliament elections in 2021. On behalf of the UK government, Jack issued a statement promising to ‘work constructively with the Scottish Government in tackling all the challenges we share and face’.
For transcripts of the Commons debates, see: Hansard.
Sources:
• Nicola Sturgeon’s address about Scotland’s future
• UK Government statement on Supreme Court ruling on draft independence referendum bill
This content was first published by LNB News / Lexis®Library, a LexisNexis® company, on 23 November 2022 and is published with permission. Further information can be found at: www.lexisnexis.co.uk.
